1912 (11) TMI 2

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..... the name of his wife. 3. Basharat Husain brought a suit for redemption. His right to redeem was not disputed. The only question was as to the terms and conditions on which the decree for redemption should be made. 4. On the part of the appellant it was maintained that the rights of the parties must be governed by the provisions of the mortgage deed of 1880, which was duly executed and duly registered. On the other hand the mortgagor contended (1.) that the real intention of the parties was to be gathered, not from the mortgage deed, but from negotiations and conversations alleged to have taken place before the mortgage was executed; and (2.) that, on the mortgagor relinquishing the mortgaged property which had been leased to him imme .....

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..... ed contains the following statement: It is agreed by mutual consent of the parties to this document that the profits of the property mortgaged shall belong to the aforesaid mortgagee in lieu of the interest on the mortgage money, and I, the mortgagee, shall have no claim for mesne profits. The mortgagee also shall have no right to claim interest on the mortgage money advanced by him. 7. The mortgagee relied on this provision. The learned judges of the High Court refused to give it any effect, holding that the mortgage was usufructuary only in form, and that the security was intended to be a simple mortgage carrying interest at the rate of 6 per cent, per annum. In coming to this conclusion the learned judges seem to have been influence .....

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..... e itself had contained a provision for granting a lease on the terms upon which the lease was actually granted. 10. One point was raised by the mortgagee before the Subordinate Judge on which he failed. It was not dealt with by the learned judges of the High Court because they were against the mortgagee on the main question. The point was raised again before this Board; it was this: Part of the property expressed to be mortgaged was withdrawn from the security in consequence of a successful claim to it by the mortgagor's sister. The mortgagee claimed damages or compensation for the diminution of his security. The Subordinate Judge rejected that claim, being of opinion that the mortgagee when he took his security was aware of the circ .....

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